District court properly ruled that community-college president has qualified immunity from First Amendment claim brought by director of college's youth program, alleging director was discharged in retaliation for firing state legislator employed by program—who did not show up for work—and for testifying at that legislator's criminal trial, where director's actions and testimony fell within scope of his official duties.

Appeal from the United States District Court for the Northern District of
Alabama. Docket No. 4:11-cv-00883-KOB.

Before MARTIN, FAY, and EDMONDSON, Circuit Judges.

PER CURIAM:

Edward Lane appeals the district court's grant of summary judgment in
favor
[*710]
of Steve Franks, the president of Central Alabama Community College
("CACC"), in his 42 U.S.C. § 1983 lawsuit alleging retaliation in violation
of the First Amendment. No reversible error has been shown; we affirm.

In September 2006, Lane accepted a probationary position as Director of
CACC's Community Intensive Training for Youth Program ("CITY"), a program
for at-risk youth. Soon after assuming his duties, Lane audited CITY's
finances and discovered that then-state representative Suzanne Schmitz was
listed on CITY's payroll but was not reporting for work and had not
otherwise performed tangible work for the program.

When Lane raised his concerns about Schmitz internally, he was warned by
CACC's then-president and by CACC's lawyer that terminating Schmitz's
employment could have negative repercussions for both Lane and CACC. Despite
these warnings, Lane terminated Schmitz's employment with CITY after Schmitz
refused to report to work.

Schmitz filed a lawsuit seeking to get her job back. Schmitz also
commented to another CITY employee that she planned to "get [Lane] back" for
terminating her and that, if Lane requested money from the state
legislature, she would tell him "you're fired."

Soon after Schmitz's job termination, the FBI began investigating Schmitz
and contacted Lane for information. Lane testified before a federal grand
jury and — pursuant to a subpoena — testified at Schmitz's August 2008
federal criminal trial for mail fraud and fraud involving a program
receiving federal funds.

Lane testified that Schmitz had not reported to work and had not submitted
time sheets. Lane described a couple of telephone conversations he had with
Schmitz during which Lane asked about Schmitz's work responsibilities and
explained that he needed to account for her day-to-day activities for CITY.
Lane instructed Schmitz — verbally and in writing — to start reporting daily
to CITY's Huntsville office. Over the phone, Schmitz responded by telling
Lane that she had gotten her job through her connections with the Executive
Secretary of the Alabama Education Association. Schmitz later sent a letter
in which she refused to report to the Huntsville office and requested that
she be allowed to "continue to serve the CITY Program in the same manner as
[she had] in the past." Lane testified the he had expressed his concerns
about Schmitz's position with CACC's interim president, who agreed that Lane
needed to get Schmitz to report to work. Lane testified to these facts again
at Schmitz's [**2] second criminal trial in February 2009.

In late 2008 — due to substantial budget cuts — Lane and Franks began
discussing the possibility of employee layoffs, including laying off all
probationary employees. In January 2009, Franks sent termination letters to
29 CITY employees with less than 3 years of service, which included Lane. A
few days later, however, Franks rescinded nearly all of those terminations:
Lane was one of only two employees whose termination was not rescinded.
According to Franks, he rescinded the other terminations after discovering
that many of the CITY employees were not in fact probationary.

Lane filed a civil action against Franks — in both his official and
individual capacity — alleging that Franks terminated Lane in retaliation
for testifying against Schmitz, in violation of the First Amendment.[fn1]
The district court granted
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Franks's motion for summary judgment. Although the district court couched
its decision in terms of qualified immunity, it determined that Lane's
speech was made pursuant to his official duties as CITY's Director, not as a
citizen on a matter of public concern. We reach the same conclusion. Because
Lane has failed to establish a prima facie case of retaliation, we do not
decide about Franks's defense of sovereign immunity.[fn2]

We review a district court's grant of summary judgment de novo, and we
view the evidence and all reasonable factual inferences in the light most
favorable to the nonmoving party. Skop v. City of Atlanta, 485 F.3d 1130,
1136 (11th Cir.2007). "Summary judgment is appropriate if the evidence
establishes 'no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.'" McCormick v. City ofFort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003).

To establish a claim of retaliation for protected speech under the First
Amendment, a public employee must show, among other things, that he "spoke
as a citizen on a matter of public concern." See Garcetti v. Ceballos,
547 U.S. 410, 126 S.Ct. 1951, 1958, 164 L.Ed.2d 689 (2006) (a decision
further restricting public employees' protected speech). A government
employee whose speech is made pursuant to his official duties is not
speaking as a citizen. See id. at 1960; Battle v. Bd. of Regents,
468 F.3d 755, 760 (11th Cir.2006). Even if an employee was not required to
make the speech as part of his official duties, he enjoys no First Amendment
protection if his speech "owes its existence to [the] employee's
professional responsibilities" and is "a product that 'the employer itself
has commissioned or created' ". See Abdur-Rahman v. Walker, 567 F.3d 1278,
1286 (11th Cir.2009).

Whether the subject speech was made by the public employee speaking as a
citizen or as part of the employee's job responsibilities is a question of
law for the court to decide. See Vila v. Padron, 484 F.3d 1334, 1339 (11th
Cir.2007). In determining whether a government employee's statement is
protected by the First Amendment, "we look to the content, form, and context
of a given statement, as revealed by the whole record." Abdur-Rahman,
567 F.3d at 1283.

In Morris v. Crow, we determined that a police officer's speech — which
consisted of the officer's accident report and his subpoenaed deposition
testimony made in conjunction [**3] with judicial proceedings, "reiterat[ing]" the
observations made in his accident report — -was unentitled to First
Amendment protection. 142 F.3d 1379 (11th Cir.1998). Because the officer
prepared his accident report in the normal course of his official duties,
the report did not constitute speech "made primarily in the employee's role
as citizen." Id. at 1382[*712] . And
because the officer's deposition testimony was given merely "in compliance
with a subpoena to testify truthfully" — and not as a "public comment on
sheriff's office policies and procedures, the internal workings of the
department, the quality of its employees or upon any issue at all" — it was
unprotected under the First Amendment. Id. at 1382-83 ("The mere fact that
Morris's statements were made in the context of a civil deposition cannot
transform them into constitutionally protected speech.").[fn3]

[1] No one disputes that Lane was acting pursuant to his official duties as
CITY'S Director when he investigated Schmitz's work activities, spoke with
Schmitz and other CACC officials about Schmitz's employment, and ultimately
terminated Schmitz's employment. That Lane testified about his official
activities pursuant to a subpoena and in the litigation context, in and of
itself, does not bring Lane's speech within the protection of the First
Amendment. See id. Furthermore, because formal job descriptions do not
control, that Lane's official duties did not distinctly require him to
testify at criminal trials falls short of triggering First Amendment
protection. See Abdur-Rahman, 567 F.3d at 1283.

Although not dispositive, we consider it pertinent that the subject matter
of Lane's testimony touched only on acts he performed as part of his
official duties. See Abdur-Rahman, 567 F.3d at 1282. As in Morris, nothing
evidences that Lane testified at Schmitz's trial "primarily in [his] role as
a citizen" or that his testimony was an attempt to comment publicly on
CITY'S internal operations.

In the light of our precedents, the record fails to establish that Lane
testified as a citizen on a matter of public concern: as a matter of law, he
cannot state a claim for retaliation under the First Amendment. Franks was
entitled to summary judgment.

AFFIRMED.

[fn1] On appeal, Lane has abandoned expressly (1) his claims against CACC;
(2) his claims for violation of the Alabama State Employee Protection Act,
Ala. Code § 36-26A-3; (3) his claims for violation of 42 U.S.C. § 1985; and
(4) his claim for money damages against Franks in his official capacity.

[fn2] Having concluded that Lane failed to establish even a prima facie case
for a violation of a federal right, we necessarily also conclude that Lane
failed to demonstrate that Franks violated a federal right of Lane's that
was already clearly established before Franks acted. Thus, even if — if,
which we think is not correct — a constitutional violation of Lane's First
Amendment rights occurred in these circumstances, Franks would be entitled
to qualified immunity in his personal capacity. See Vinyardv. Wilson,
311 F.3d 1340, 1346 (11th Cir.2002) (government officials acting within the
scope of their discretionary authority are immune from individual civil
liability if the official's conduct violates no "clearly established
statutory or constitutional rights of which a reasonable person would have
known.").

[fn3] Other circuits seem to have decided this issue differently. SeeMorales v. Jones, 494 F.3d 590, 598 (7th Cir.2007) (concluding that a public
employee's subpoenaed deposition testimony about speech he made pursuant to
his official duties was protected by the First Amendment); Reilly v. City ofAtlantic City, 532 F.3d 216 (3d Cir.2008) (explaining that a police
officer's trial testimony was protected by the First Amendment because,
although the testimony stemmed from the officer's official duties, the
officer had an "independent obligation as a citizen to testify
truthfully."). But Morris is the law in this Circuit on the question of
public employee speech per a subpoena in the context of judicial
proceedings.